This factsheet will discuss the considerations a HR manager should take into account before deciding to initiate a workplace investigation, as well as key things to think about before deciding whether a workplace investigation should be handled in-house or externally.
Key questions to ask before starting an investigation
Do I need to investigate this?
Does the alleged conduct justify disciplinary action (including dismissal)?
Consider whether, if the conduct alleged were to be found proven, you intend to discipline, counsel or take some sort of action against the employee. If the allegations were proven but you would not take any action against the employee, then you may not need to investigate.
Do you have an obligation to investigate the allegations under an enterprise agreement or your workplace policies?
Review the relevant workplace instruments (organisation policies / enterprise agreement / awards) that apply to your organisation. In many circumstances these instruments will specify when an investigation should be conducted and the manner in which it should be carried out. In particular, look out for ‘Dispute Resolution’ clauses and policies in these instruments.
Could this matter lead to serious legal repercussions?
If it is alleged that a workplace law or workplace instrument has been breached then you may need to investigate.
Is the matter minor?
If the complaint is minor, then it may be best dealt with at a HR level. Check workplace instruments to see whether there is discretion to consider the seriousness of a workplace complaint when deciding to investigate. Typically a discretion exists to choose not to enquire into the matter on grounds that the complaint is trivial, frivolous, vexatious or not made in good faith.
Can I run my own investigation?
Is there a person with relevant expertise to conduct an investigation who is not in some way involved in the matter?
Procedural fairness requires that there be a lack of bias in investigations. This can be difficult to achieve in circumstances where relatively senior people (who would normally be involved in the investigation process) have allegations made against them. This can also be a problem in small offices and small businesses where everybody knows everybody.
Is there a person with relevant expertise who has the time and capacity to gather and receive information as it pertains to the investigation?
It is in the interests of all parties for investigations to be conducted quickly (especially if the employee is on paid suspension). If there isn’t capacity in-house to gather and receive large quantities of information then this may be good reason to seek the assistance of an external body to assist with or conduct the investigation.
Is there evidence to support claims that is clear and unambiguous?
In circumstances where the evidence is clear and unambiguous the investigation is not normally difficult. The question in these circumstance is what response the employer will have to the proven allegation(s).
Does the matter involve corruption, sensitive subject matters or conflicts of interest?
Most investigations can be dealt with ‘in-house’. However where matters involve such complexities it is advisable to seek the assistance of an external body to conduct the investigation.
Considerations when running an investigation
Does the investigation require suspension of an employee while an investigation is conducted?
Suspension as an investigation tool should be used sparingly and when it is absolutely necessary for the integrity of the investigation. Owing to the risk of wasting funds, mental health injuries to the effect employee and difficulties in successfully returning the individual to the workplace it is advisable to seek the assistance of an external body to assist with or to conduct the investigation.
Is there a risk that your investigation will pose a danger to work health and safety of staff?
It is important to carry out your investigations in a reasonable manner so as to reduce the risk of mental health injuries to those involved.
Is the allegation sufficiently serious such that there are considerable consequences for the respondent?
The more serious the allegations the more sophisticated your investigation should be. The level of satisfaction required on the civil standard of proof increases in accordance with the seriousness of the matter under consideration.
Are there a number of witnesses?
It can be difficult to deal with evidence submitted by witnesses that you suspect may be dishonest or evasive. In cases where unreliability is manifest, the decision not to give full weight to a witness statement should be taken carefully and with reasons provided. Where they are a direct witness the statement should always be taken.
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